* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 21 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. DAVI LYNN MURPHY, Defendants-Appellant. Nos. 99-6417, 00-6007 D.C. Nos. CR-97-136-L & CIV-98-1051-L

ORDER AND JUDGMENT *

Before BALDOCK, HENRY , and LUCERO , Circuit Judges.

Davi Lynn Murphy seeks to a ppeal the district court’s order denying her motion to correct or vacate her sentence pursuant t o 28 U.S.C. § 2255. She advances the following arguments: (1) the governme nt breached the plea agreement by failing to move for a downward departu re or a sentencing reduction; (2) the government violated her Fifth Amendment rig hts by relying on her1 After examining the briefs and appellate record , this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted w ithout oral argument.

2 statements to calculate the offense level; and (3) the district court erred in calculating her criminal history score. For the re asons set forth below, we deny Ms. Murphy’s application for a certificate of appea lability and dismiss this appeal. 1

I. BACKGROUND In October 1997, Ms. Murphy pleaded guilty to a one count information charging her with conspiring to possess with the in tent to distribute cocaine base, a violation of 21 U.S.C. § 841(a)(1). The district court sentenced her to 210 months’ imprisonment. Ms. Murphy did not file a dir ect appeal of her conviction

or sentence. In July 1998, Ms. Murphy filed the instant § 2255 m otion. She argued that the district court had improperly calculated her ba se offense level and her criminal history score and that she had received in effective assistance of counsel. She based her ineffective assistance of counsel cla im on her lawyer’s advising her to plead guilty and on her lawyer’s failing to obje ct at sentencing to the district court’s determination of the offense level and crim inal history score. She also3

argued that the government had improperly relied on accomplice testimony in contravention of the panel opinion in United States v. Singleton , 144 F.3d. 1343 (10th Cir. 1998), rev’d en banc , 165 F.3d 1297 (10th Cir. 1999), cert. denied , 527 U.S. 1024 (1999). The district court concluded that Ms. Murphy was pr ocedurally barred from raising these claims. It noted that she had failed to raise the claims on direct appeal and that she had failed to establish either cause and prejudice for the procedural default or a fundamental miscarriage of justice arising out of the failure to consider her claims. The court specifically rejected Ms. Murphy’s argume nt that her lawyer’s failing to challenge the government’s calculation o f her offense level constituted ineffective assistance of counsel. The court reaso ned that Ms. Murphy had admitted in the change of plea proceedings that the substance involved in the offense was crack cocaine. The court also noted th at the presentence report’s calculation of the offense level was based on state ments from Ms. Murphy. As a result, the court stated, Ms. Murphy’s lawyer was n ot ineffective for failing to challenge the government’s reliance on her own stat ements. As to Ms. Murphy’s criminal history score, the dist rict court assumed, without deciding, that it had erred in two respects : (1) in relying on a 1985 conviction (which Ms. Murphy allege not consider pu rsuant to USSG §4

4A1.2(e)(3) because it was more than ten years old) : (2) in relying on a 1992 charge (which Ms. Murphy alleged had been dismissed ). The court concluded that those assumed errors had not affected Ms. Murp hy’s sentence: “[E]ven if the court were to sustain defendant’s belated objection s, the sentenced imposed would still be within the revised guideline range a nd the court would have imposed the same sentence.” Rec. doc. 36 at 7. (Di strict Court Order, filed Dec. 9, 1998).

II. DISCUSSION In the district court proceedings, Ms. Murphy did n ot raise the first two claims that she now advances in her appellate brief — that the government breached the plea agreement by failing to move for a downward departure or a sentencing reduction and that the government violat ed her Fifth Amendment rights by relying on her statements to calculate th e offense level. Ordinarily, we do not consider arguments raised for the first time on appeal. United States v. Alamillo , 941 F.2d 1085, 1086 (10th Cir. 1991); see also United States v. Cook , 997 F.2d 1312, 1316 (10th Cir. 1993) (concluding th at grounds for relief not raised in a § 2255 motion in the district court wer e waived on appeal). Here, we discern no extraordinary circumstances warranting c onsideration of the new arguments raised by Ms. Murphy. Therefore, we will not address them.5

Ms. Murphy did raise her third claim in the distric t court proceedings, arguing that the district court erred in calculatin g her criminal history score and that her lawyer was ineffective in failing to chall enge the district court’s determination. Here, we agree with the analysis ad opted by the district court. The district court noted that, absent the challenge d offenses, the Guideline range would have been 188 to 235 months. Including the challenged offenses, the range set forth in the presentence report was 210 t o 262 months. The court’s finding—that it would have imposed the same 210 mon th sentence even if the two challenged offenses had been excluded from her crim inal history—forecloses Ms. Murphy’s argument that she was prejudiced by the ch allenged errors. Accordingly, we DENY Ms. Murphy’s application for acertificate of appealability and DISMISS this appeal.

Entered for the Court,

Robert H. Henry United States Circuit Judge